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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1525


Filed: 18 September 2007


     v .                              Wake County
                                     No. 98 CVD 13218

    Appeal by defendant from orders entered 23 September 2005 and 12 July 2006 by Judge Donna S. Stroud in Wake County District Court. Heard in the Court of Appeals 20 August 2007.

    Sandlin & Davidian, P.A., by Deborah Sandlin, for plaintiff appellee.

    Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant appeals orders entered modifying a custody order denying defendant's motion for relief. We affirm.

    Douglas Ray Calhoun (“Douglas”) and Tina Cheryl Golian (“Tina”) were married on 30 April 1995 and physically separated on 23 June 1999. The parties divorced in December 2000. There was one child born of their marriage, Ryan Christopher Calhoun (“Ryan”). After a trial in September 1999, Tina was awarded the primary care and custody of Ryan in an order entered on or about 6 January 2000 (“the 2000 order”). The custodial schedule generallyprovided that Ryan would reside with Tina during the school year and with Douglas during the summers. Douglas was also awarded visitation every other weekend, every other Wednesday overnight, and every other Wednesday for the evening during the school year.
    At the time of the 2000 hearing, Tina was employed full time. Tina subsequently met her husband, Bob Golian, (“Mr. Golian”) in March 2002, and they were wed later in the year. Mr. Golian encouraged his wife to become a stay-at-home mom, and Tina agreed. Tina sold a consulting business she owned in April 2003, and has been a stay-at-home mom since that time.
    On 30 April 2004, Mr. Golian was terminated by his employer. He began searching for new employment, and he received one job offer from an employer in Minnesota. Mr. Golian began working for his new employer in Minnesota on 16 December 2004.
    Tina filed a motion to modify custody on 23 December 2004. Douglas sought a temporary restraining order preventing Tina from taking Ryan to Minnesota. Douglas filed a reply to Tina's motion and also filed his own motion to modify custody on 12 January 2005. The trial court entered an order modifying the court's prior order of custody to grant Douglas primary physical custody of Ryan. Tina moved for relief from this order on 26 October 2005. The trial court denied Tina's motion. Tina appeals both orders.
    Tina contends the trial court's conclusion of law that there was a substantial change of circumstances warranting a modificationof custody is not supported by the trial court's findings of fact. We disagree.
    “The party moving for modification of an existing custody order must show there has been a substantial change in circumstances affecting the welfare of the child.” Scott v. Scott, 157 N.C. App. 382, 385, 579 S.E.2d 431, 433 (2003). “'If a substantial change in circumstances is shown, [then] the trial court must consider whether modification of the custody order would be in the best interest of the child.'” Id. at 385, 579 S.E.2d at 434 (citation omitted). “In child custody cases, the trial court has broad discretion, and it will not be upset absent a clear showing of an abuse of that discretion.” Id. at 385, 579 S.E.2d at 433. “However, the trial court's findings of fact must be supported by substantial evidence, and its conclusions of law are reviewable de novo.” Id.
    Here, we determine the trial court did not err. First, Tina argues, citing Ramirez-Barker v. Barker, 107 N.C. App. 71, 418 S.E.2d 675 (1992), that Douglas must show that Tina's relocation is detrimental to Ryan before the legal test of a substantial change of circumstances is met. However, the North Carolina Supreme Court disapproved of Ramirez-Barker in Pulliam v. Smith, 348 N.C. 616, 620, 501 S.E.2d 898, 900 (1998). The Court stated:
        [t]he Court of Appeals' decision . . . insofar as it mandates that the changed circumstances analysis be limited to a showing of adverse effects on the child, is contrary to N.C.G.S. § 50-13.7(b) and is disapproved.  . ..
            We emphasize that an adverse effect upon a child as the result of a change in circumstances is and remains an acceptable factor for the courts to consider and will support a modification of a prior custody order. However, a showing of a change in circumstances that is, or is likely to be, beneficial to the child may also warrant a change in custody.

    Second, the trial court's order included several pages discussing in detail the effects of Tina's relocation to Minnesota as to the minor child. For example, the trial court found that Ryan has many extended family members on both sides of the family, maternal and paternal, that live in or near Wake County, as well as other extended family members. The court noted that Ryan sees many of these extended family members on a regular and frequent basis and has close relationships with many cousins who are near his age. None of the extended family members of either party lives in or near Minnesota. In addition, the trial court found that Tina's relocation has had and will continue to have an effect on the minor child because it will be impossible for the current custodial schedule, which allows for the minor child to have frequent visitation with Douglas, to continue with the relocation. In addition, the trial court found that this change of circumstances will further affect the minor child because he has enjoyed a close relationship with both parents and has been seeing Douglas on a regular basis for his entire life. The court stated that it was in Ryan's best interest that he continue to spend as much time as possible with each parent, to maintain his relationships withextended family members, and to minimize his travel between North Carolina and Minnesota, particularly during the school year. Tina did not assign error to any of the trial court's findings of fact, and thus, they are binding on appeal. They support the trial court's conclusion of law that there has been a substantial change in circumstances affecting the welfare of Ryan.
    Tina contends the trial court abused its discretion in ordering Ryan's primary custody to be changed to Douglas and by granting Douglas the ability to select a home in North Carolina for Tina to exercise visitation with the minor child. We disagree.
        Where the trial court concludes that a substantial change in circumstances has occurred affecting the welfare of the child and that custody modification was in the best interest of the child, we defer to the trial court's judgment, and will not overturn it, absent a clear showing of abuse of discretion.

Karger v. Wood, 174 N.C. App. 703, 708, 622 S.E.2d 197, 201 (2005). We have already determined that the trial court did not err in concluding that a substantial change of circumstances occurred affecting the welfare of Ryan.
    Regarding the issue of the housing option provided by Douglas for Tina's use during her visits within North Carolina with Ryan, Tina failed to show the trial court abused its discretion. During the hearing, both parties offered to purchase a town home where he or she lived so that the other parent would have a home in which to visit Ryan. The trial court ordered that Douglas purchase a town home or condominium for Tina's use, rent free, as her secondaryresidence when visiting with Ryan while in North Carolina. The order provided that the rent-free lease between the parties could be terminated by Douglas upon Tina establishing her own residence within 50 miles of Wake County or if Tina did not utilize the secondary residence when she visited with Ryan for a period of 90 days or more without good cause or if she failed to use the secondary residence for visitation with Ryan for at least 25% of the time available to her without good cause. Nothing in the trial court's order mandated that Tina use the residence provided by Douglas, but only mandated that it be provided.
    Chief Judge MARTIN and Judge TYSON concur.
    Report per Rule 30(e).

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